W.C. No. 4-660-574.Industrial Claim Appeals Office.
March 29, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated October 13, 2006 that denied the claimant’s request to convert his scheduled impairment to whole person impairment. We affirm.
Several of the ALJ’s findings are summarized as follows. The claimant sustained an injury at work on August 9, 2005, when he fell from a ladder. His authorized treating physician found him to be at maximum medical improvement on October 31, 2005 and assessed a zero percent medical impairment rating. Dr. Ross conducted a Division-sponsored independent medical examination (DIME). Dr. Ross found that the claimant had neck and shoulder pain related to his work-related injury. The corresponding impairment evaluation for the claimant included a 12 percent whole person impairment for his cervical spine, an eight percent scheduled impairment for his left shoulder, and a two percent scheduled impairment for his right elbow. The respondents filed a final admission of liability, accordingly. The ALJ also found that any functional impairment of the claimant’s neck is included in the whole person rating for the cervical spine. The ALJ concluded that the claimant failed to establish any entitlement to a functional impairment above the shoulder beyond the impairment rating for his cervical spine.
The claimant’s petition to review asserts that he objects to the ALJ’s decision as to the issue of whether proved by a preponderance of the evidence that his scheduled injury should be converted to a whole person rating. However, the claimant did not file a brief
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in support of his contentions. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986).
In any event, the question of whether the claimant’s impairment for his left shoulder is a scheduled injury is an issue of fact for the ALJ, “whose determination must be upheld on appeal if it is supported by substantial evidence.” Delaney v. Industrial Claim Appeals Office, 30 P.3d 691, 693 (Colo.App. 2000). To the extent the claimant wished the ALJ to convert the scheduled impairment to a whole person rating, he was required to prove functional impairment beyond the arm at the shoulder. Section 8-43-201, C.R.S. 2006 (claimant has burden of proof to establish entitlement to benefits); § 8-42-107(b)(I), C.R.S. 2006 (scheduled injuries to be compensated under the schedule and nonscheduled injuries compensated as medical impairment benefits); Strauch v. Industrial Claim Appeals Office, 917 P.2d 366 (Colo.App. 1996). In resolving this question, the ALJ must determine the situs of the claimant’s “functional impairment,” and the site of the functional impairment is not necessarily the site of the injury itself. Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883 (Colo.App. 1996); Strauch v. PSL Swedish Healthcare System, supra. In applying this standard, the ALJ is also presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo.App. 2003).
The ALJ’s determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). Under this standard of review it is the ALJs sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, supra.
This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Moreover, the existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
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The ALJ’s determination that the claimant did not sustain a whole person impairment related to his shoulder is supported by evidence in the record. Dr. Ross prepared a written report of his medical findings. Exhibit 1. The claimant described “a rather constant pain in the neck with radiation to the left shoulder,” and “[h]is symptoms are exacerbated with neck extension and left lateral flexion.” Exhibit 1 at 4. However, Dr. Ross proceeded to assess an 8 percent impairment for the left shoulder, which reflects reduced shoulder flexion, extension, abduction, adduction, and internal rotation. Exhibit 1 at 6. Dr. Ross also included a 12 percent whole person impairment based on the claimant’s restrictions related to his cervical spine. Exhibit 1 at 6. The ALJ credited Dr. Ross’s evaluation and determined that the claimant’s functional impairment to the neck was included the DIME physician’s impairment rating for the claimant’s cervical spine. Findings of Fact, Conclusions of Law, and Order at 4 (unpaginated), ¶¶ 7, 13. Dr. Ross’s report supports the ALJ’s findings. In addition the report of Dr. Schwender supports the ALJ’s determination that the impairment to the left shoulder sustained by the claimant is a scheduled impairment. Exhibit 2 at 44. Dr. Schwender while noting a cervical strain also determined the claimant had a left shoulder strain and left upper extremity paresthesias and discharged the claimant from medical care without impairment. In our opinion there is substantial evidence to support the ALJ’s finding that the industrial injury caused functional impairment to the left shoulder as a scheduled impairment.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 13, 2006, is affirmed.
____________________ John D. Baird
____________________ Thomas Schrant
Clarence Swan c/o Paul Garcia, Colorado Springs, CO, Labor Ready Corporate Offices, Tacoma, WA, ESIS Portland WC Claims Lorie Ragsdale, Tampa, FL, Hueser Hueser LLP Barkley D. Hueser, Esq., Colorado Springs, CO, (For Claimant).
Clifton, Mueller Bovarnick Kimberley Quinn, Esq., Denver, CO, (For Respondents).